[Congressional Record Volume 144, Number 65 (Wednesday, May 20, 1998)]
[Senate]
[Pages S5232-S5237]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Hatch, and Mrs. Boxer):
  S. 2103. A bill to provide protection from personal intrusion for 
commercial purposes; to the Committee on the Judiciary.


                    Personal Privacy Protection Act

  Mrs. FEINSTEIN. Mr. President, today, along with the Chairman of the

[[Page S5233]]

Judiciary Committee, Senator Hatch, and Senators Boxer and Kerry, I am 
introducing the Personal Privacy Protection Act. This legislation 
narrowly targets threatening and endangering harassment and privacy 
abuses undertaken by the stalker press.
  Freedom of the press is the bedrock of American Democracy. But there 
is something wrong when a person cannot visit a loved one in the 
hospital, walk their child to school, or be secure in the privacy of 
their own home without being dangerously chased, provoked, or 
trespassed upon by photographers trying to capture pictures of them to 
sell to the tabloids.
  When people find themselves in the public eye due to a personal 
tragedy or circumstances beyond their control, they should not be put 
into personal fear of bodily injury by tabloid media persistently 
chasing them. And just because a person makes their living on 
television or in the movies should not mean they forfeit all rights to 
personal privacy. There is a line between legitimate news gathering and 
invasion of privacy; between snapping a picture of someone in a public 
place and chasing them to the point where they fear for their safety; 
between reporting the news and trespassing on private property. 
Unfortunately, today that line is crossed more and more frequently by 
an increasingly aggressive cadre of fortune-seekers with cameras.
  I began the process of developing this legislation together with 
Senator Boxer more than a year ago, after meeting with members of the 
Screen Actors Guild and hearing about the abuses people suffer every 
day at the hands of the stalker press--photographers using telephoto 
lenses to peer into private homes, cars chasing them off the road, 
having their children stalked and harassed. The tragic death of 
Princess Diana last August brought the seriousness of the problem home 
with a blunt force that stunned the world.
  This legislation is narrowly drafted. It is not aimed at, nor would 
it affect, the overwhelming majority of those in the media, but is 
specifically aimed at abusive, threatening tactics employed by some who 
do not respect where the line is between what is public and what is 
private.
  The Personal Privacy Protection Act would do two basic things. First, 
it would make it a crime, punishable by a fine and up to a year in 
prison, to persistently follow or chase someone in order to photograph, 
film, or record them for commercial purposes, in a manner that causes a 
reasonable fear of bodily injury. Cases in which the persistent 
following or chasing actually caused serious bodily injury would be 
punishable by up to 5 years in prison, and where the actions caused 
death, by up to 20 years in prison. The legislation would also allow 
victims of such actions to bring a civil suit to recover compensatory 
and punitive damages and for injunctive and declaratory relief.

  Second, the legislation would allow civil actions to be brought 
against those who trespass on private property in order to photograph, 
film, or record someone for commercial purposes. In such cases, the 
bill would allow victims to bring suit in Federal court to recover 
compensatory and punitive damages and to obtain injunctive and 
declaratory relief.
  Furthermore, in certain specified circumstances, the bill would 
prevent ``technological trespass.'' Specifically, the legislation would 
allow a civil action where a visual or auditory enhancement device is 
used to capture images or recordings that could not otherwise have been 
captured without trespassing. This provision would apply only to images 
or recordings of a personal or familial activity, captured for 
commercial purposes, and only where the subject had a reasonable 
expectation of privacy. In such cases, the victim would be allowed to 
bring suit in Federal court to recover compensatory and punitive 
damages and to obtain injunctive and declaratory relief. In the case of 
trespass or technological trespass, only a civil suit by the victim 
would be allowed; no criminal penalty would be prescribed.
  This legislation is needed because existing laws fail to protect 
against dangerous and abusive tactics. Although existing laws may cover 
some instances of abusive harassment or trespass by the stalker press, 
victims cannot be certain of protection. Existing state laws form at 
best a patchwork of protection, and courts often make an exception for 
activity undertaken ostensibly for ``news gathering'' purposes.
  For example, state and local harassment law are often not codified 
and may require exhaustive litigation to enforce. These vary from state 
to state and from jurisdiction to jurisdiction, and often do not apply 
in cases involving the media. Some statutes require proof of an intent 
to harass; and courts in some jurisdictions may allow a broad ``news 
gathering'' exception.
  Similarly, reckless endangerment statutes in some states prohibit 
recklessly engaging in conduct which creates a substantial risk of 
serious physical injury to another person. However, these laws are not 
uniform and their application is very spotty when it comes to dealing 
with abusive media practices.
  Federal, state, and local anti-stalking ordinances often contain 
loopholes and generally do not apply to activities undertaken for 
commercial purposes. The Federal anti-stalking ordinance and 28 of the 
49 state anti-stalking ordinances--including California's--require 
proof of the criminal intent to cause fear in order to prosecute.
  Existing state trespass laws may be insufficient to protect an owner 
from an invasion of privacy. For example, an Oregon Court of Appeals 
upheld a jury verdict for a TV news crew that filmed a police raid in 
executing a warrant to search the owner's home, despite the fact that 
the TV crew had entered the property without permission, because the 
jury found that the intrusion was not ``highly offensive' so as to 
invade the owner's privacy.

  Furthermore, existing trespass laws fail to protect against 
technological trespass using intrusive technology such as telephoto 
lenses and parabolic microphones aimed at bedrooms, living rooms, and 
fenced backyards in which people ought to have an expectation of 
privacy. Because trespass law requires actual physical invasion, it 
does not protect against such invasive tactics.
  In crafting this legislation, we worked with some of the most 
renowned Constitutional scholars and First Amendment advocates in the 
nation, including Erwin Chemerinsky of the University of Southern 
California Law School, Cass Sunstein of the Chicago School of Law, and 
Lawrence Lessig of Harvard Law School. At their recommendation, we took 
the approach of plugging loopholes in existing, long-recognized laws 
prohibiting harassment and trespassing, rather than creating new 
provisions out of whole cloth, in order to craft a constitutional bill 
that fully respects First Amendment and other constitutional rights. 
This bill does so. The Constitutional scholars concurred unanimously 
that this legislation is narrowly drafted to withstand constitutional 
challenge on First Amendment, federalism, or any other grounds.
  Mr. President, finally, I should mention that we worked closely with 
Representative Sonny Bono on this legislation prior to his untimely 
death, and it was Representative Bono's intention to introduce 
companion legislation in the House of Representatives. I am deeply 
saddened that he is not alive today to do so.
  I urge my colleagues to support this legislation in order to protect 
against invasive, harassing, and endangering behavior that can threaten 
any one of us who, for whatever reason, finds him or herself in the 
public spotlight. I ask unanimous consent that the text of the bill be 
included in the Record, along with the letters mentioned previously.
  There being no objection, the items were ordered to be printed in the 
Record, as follows:

                                S. 2103

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

         This Act may be cited as the ``Personal Privacy 
     Protection Act''.

     SEC. 2. FINDINGS AND PURPOSES.

         (a) Findings.--Congress makes the following findings:
         (1) Individuals and their families have been harassed and 
     endangered by being persistently followed or chased in a 
     manner that puts them in reasonable fear of bodily injury, 
     and in danger of serious bodily injury or even death, by 
     photographers, videographers, and audio recorders attempting 
     to capture images or other reproductions of their private 
     lives for commercial purposes.

[[Page S5234]]

         (2) The legitimate privacy interests of individuals and 
     their families have been violated by photographers, 
     videographers, and audio recorders who physically trespass in 
     order to capture images or other reproductions of their 
     private lives for commercial purposes, or who do so 
     constructively through intrusive modern visual or auditory 
     enhancement devices, such as powerful telephoto lenses and 
     hyperbolic microphones that enable invasion of private areas 
     that would otherwise be impossible without trespassing.
         (3) Such harassment and trespass threatens not only 
     professional public persons and their families, but also 
     private persons and their families for whom personal 
     tragedies or circumstances beyond their control create media 
     interest.
         (4) Federal legislation is necessary to protect 
     individuals and their families from persistent following or 
     chasing for commercial purposes that causes reasonable fear 
     of bodily injury, because such harassment is not directly 
     regulated by applicable Federal, State, and local statutory 
     or common laws, because those laws provide an uneven 
     patchwork of coverage, and because those laws may not cover 
     such activities when undertaken for commercial purposes.
         (5) Federal legislation is necessary to prohibit and 
     provide proper redress in Federal courts for trespass and 
     constructive trespass using intrusive visual or auditory 
     enhancement devices for commercial purposes, because 
     technological advances such as telephoto lenses and 
     hyperbolic microphones render inadequate existing common law 
     and State and local regulation of such trespass and invasion 
     of privacy.
         (6) There is no right, under the first amendment to the 
     Constitution of the United States, to persistently follow or 
     chase another in a manner that creates a reasonable fear of 
     bodily injury, to trespass, or to constructively trespass 
     through the use of intrusive visual or auditory enhancement 
     devices.
         (7) This Act, and the amendments made by this Act, do not 
     in any way regulate, prohibit, or create liability for 
     publication or broadcast of any image or information, but 
     rather use narrowly tailored means to prohibit and create 
     liability for specific dangerous and intrusive activities 
     that the Federal Government has an important interest in 
     preventing, and ensure a safe and secure private realm for 
     individuals against intrusion, which the Federal Government 
     has an important interest in ensuring.
         (8) This Act protects against unwarranted harassment, 
     endangerment, invasion of privacy, and trespass in an 
     appropriately narrowly tailored manner without abridging the 
     exercise of any rights guaranteed under the first amendment 
     to the Constitution of the United States, or any other 
     provision of law.
         (9) Congress has the affirmative power under section 8 of 
     article I of the Constitution of the United States to enact 
     this Act.
         (10) Because this Act regulates only conduct undertaken 
     in order to create products intended to be and routinely 
     transmitted, bought, or sold in interstate or foreign 
     commerce, or persons who travel in interstate or foreign 
     commerce in order to engage in regulated conduct, the Act is 
     limited properly to regulation of interstate or foreign 
     commerce.
         (11) Photographs and other reproductions of the private 
     activities of persons obtained through activities regulated 
     by this Act, and the amendments made by this Act, are 
     routinely reproduced and broadcast in interstate and 
     international commerce.
         (12) Photographers, videographers, and audio recorders 
     routinely travel in interstate commerce in order to engage in 
     the activities regulated by this Act, and the amendments made 
     by this Act, with the intent, expectation, and routine result 
     of gaining material that is bought and sold in interstate 
     commerce.
         (13) The activities regulated by this Act, and the 
     amendments made by this Act, occur routinely in the channels 
     of interstate commerce, such as the persistent following or 
     chasing of subjects in an inappropriate manner on public 
     streets and thoroughfares or in airports, and the use of 
     public streets and thoroughfares, interstate and 
     international airports, and travel in interstate and 
     international waters in order to physically or constructively 
     trespass for commercial purposes.
         (14) The activities regulated by this Act, and the 
     amendments made by this Act, substantially affect interstate 
     commerce by threatening the careers, livelihoods, and rights 
     to publicity of professional public persons in the national 
     and international media, and by thrusting private persons 
     into the national and international media.
         (15) The activities regulated by this Act, and the 
     amendments made by this Act, substantially affect interstate 
     commerce by restricting the movement of persons who are 
     targeted by such activities and their families, often forcing 
     them to curtail travel or appearances in public spaces, or, 
     conversely, forcing them to travel in interstate commerce in 
     order to escape from abuses regulated by this Act, and the 
     amendments made by this Act.
         (b) Purposes.--The purposes of this Act are--
         (1) to protect individuals and their families against 
     reasonable fear of bodily injury, endangerment, trespass, and 
     intrusions on their privacy due to activities undertaken in 
     connection with interstate and international commerce in 
     reproduction and broadcast of their private activities;
         (2) to protect interstate commerce affected by such 
     activities, including the interstate commerce of individuals 
     who are the subject of such activities; and
         (3) to establish the right of private parties injured by 
     such activities, as well as the Attorney General of the 
     United States and State attorneys general in appropriate 
     cases, to bring actions for appropriate relief.

     SEC. 3. CRIMINAL OFFENSE.

         (a) In General.--Chapter 89 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1822. Harassment for commercial purposes

         ``(a) Definitions.--In this section:
         ``(1) For commercial purposes.--
         ``(A) In general.--The term `for commercial purposes' 
     means with the expectation of sale, financial gain, or other 
     consideration.
         ``(B) Rule of construction.--For purposes of this 
     section, a visual image, sound recording, or other physical 
     impression shall not be found to have been, or intended to 
     have been, captured for commercial purposes unless it was 
     intended to be, or was in fact, sold, published, or 
     transmitted in interstate or foreign commerce, or unless the 
     person attempting to capture such image, recording, or 
     impression moved in interstate or foreign commerce in order 
     to capture such image, recording, or impression.
         ``(2) Harasses.--The term `harasses' means persistently 
     physically follows or chases a person in a manner that causes 
     the person to have a reasonable fear of bodily injury, in 
     order to capture by a visual or auditory recording instrument 
     any type of visual image, sound recording, or other physical 
     impression of the person for commercial purposes.
         ``(b) Prohibition and Penalties.--Whoever harasses any 
     person within the United States or the special maritime and 
     territorial jurisdiction of the United States--
         ``(1) if death is proximately caused by such harassment, 
     shall be imprisoned not less than 20 years and fined under 
     this title;
         ``(2) if serious bodily injury is proximately caused by 
     such harassment, shall be imprisoned not less than 5 years 
     and fined under this title; and
         ``(3) if neither death nor serious bodily injury is 
     proximately caused by such harassment, shall be imprisoned 
     not more than 1 year, fined under this title, or both.
         ``(c) Cause of Action.--Any person who is legally present 
     in the United States and who is subjected to a violation of 
     this section may, in a civil action against the person 
     engaging in the violation, obtain any appropriate relief, 
     including compensatory damages, punitive damages, and 
     injunctive and declaratory relief. In any civil action or 
     proceeding to enforce a provision of this section, the court 
     shall allow the prevailing party reasonable attorney's fees 
     as part of the costs. In awarding attorney's fees, the court 
     shall include expert fees as part of the attorney's fees.
         ``(d) Limitation on Defenses.--It is not a defense to a 
     prosecution or civil action under this section that--
         ``(1) no image or recording was captured; or
         ``(2) no image or recording was sold.
         ``(e) Use of Images.--Nothing in this section may be 
     construed to make the sale, transmission, publication, 
     broadcast, or use of any image or recording of the type or 
     under the circumstances described in this section in any 
     otherwise lawful manner by any person subject to criminal 
     charge or civil liability.
         ``(f) Limitation.--Only a person physically present at 
     the time of, and engaging or assisting another in engaging 
     in, a violation of this section is subject to criminal charge 
     or civil liability under this section. A person shall not be 
     subject to such charge or liability by reason of the conduct 
     of an agent, employee, or contractor of that person or 
     because images or recordings captured in violation of this 
     section were solicited, bought, used, or sold by that person.
         ``(g) Law Enforcement Exemption.--The prohibitions of 
     this section do not apply with respect to official law 
     enforcement activities.
         ``(h) Savings.--Nothing in this section shall be taken to 
     preempt any right or remedy otherwise available under 
     Federal, State or local law.''.
         (b) Technical Amendment.--The analysis for chapter 89 of 
     title 18, United States Code, is amended by adding at the end 
     the following:

       ``1822. Harassment for commercial purposes.''.

     SEC. 4. PERSONAL INTRUSION FOR COMMERCIAL PURPOSES.

         (a) Definition of For Commercial Purposes.--
         (1) In general.--In this section, the term `for 
     commercial purposes' means with the expectation of sale, 
     financial gain, or other consideration.
         (2) Rule of construction.--For purposes of this section, 
     a visual image, sound recording, or other physical impression 
     shall not be found to have been, or intended to have been, 
     captured for commercial purposes unless it was intended to 
     be, or was in fact, sold, published, or transmitted in 
     interstate or foreign commerce, or unless the person 
     attempting to capture such image, recording, or impression 
     moved in interstate or foreign commerce in order to capture 
     such image, recording, or impression.

[[Page S5235]]

         (b) Trespass for Commercial Purposes and Invasion of 
     Legitimate Interest in Privacy for Commercial Purposes.--
         (1) Trespass for commercial purposes.--It shall be 
     unlawful to trespass on private property in order to capture 
     any type of visual image, sound recording, or other physical 
     impression of any person for commercial purposes.
         (2) Invasion of legitimate interest in privacy for 
     commercial purposes.--It shall be unlawful to capture any 
     type of visual image, sound recording, or other physical 
     impression for commercial purposes of a personal or familial 
     activity through the use of a visual or auditory enhancement 
     device, even if no physical trespass has occurred, if--
         (A) the subject of the image, sound recording, or other 
     physical impression has a reasonable expectation of privacy 
     with respect to the personal or familial activity captured; 
     and
         (B) the image, sound recording, or other physical 
     impression could not have been captured without a trespass if 
     not produced by the use of the enhancement device.
         (c) Cause of Action.--Any person who is legally present 
     in the United States who is subjected to a violation of this 
     section may, in a civil action against the person engaging in 
     the violation, obtain any appropriate relief, including 
     compensatory damages, punitive damages and injunctive and 
     declaratory relief. A person obtaining relief may be either 
     or both the owner of the property or the person whose visual 
     or auditory impression has been captured. In any civil action 
     or proceeding to enforce a provision of this section, the 
     court shall allow the prevailing party reasonable attorney's 
     fees as part of the costs. In awarding attorney's fees, the 
     court shall include expert fees as part of the attorney's 
     fees.
         (d) Limitation on Defenses.--It is not a defense to an 
     action under this section that--
         (1) no image or recording was captured; or
         (2) no image or recording was sold.
         (e) Use of Images.--Nothing in this section may be 
     construed to make the sale, transmission, publication, 
     broadcast, or use of any image or recording of the type or 
     under the circumstances described herein in any otherwise 
     lawful manner by any person subject to criminal charge or 
     civil liability.
         (f) Limitation.--Only a person physically present at the 
     time of, and engaging or assisting another in engaging in, a 
     violation of this section is subject to civil liability under 
     this section. A person shall not be subject to such liability 
     by reason of the conduct of an agent, employee, or contractor 
     of that person, or because images or recordings captured in 
     violation of this section were solicited, bought, used, or 
     sold by that person.
         (g) Law Enforcement Exemption.--The prohibitions of this 
     section do not apply with respect to official law enforcement 
     activities.
         (h) Savings.--Nothing in this section shall be taken to 
     preempt any right or remedy otherwise available under 
     Federal, State, or local law.

     SEC. 5. SEVERABILITY.

         If any provision of this Act, an amendment made by this 
     Act, or the application of such provision or amendment to any 
     person or circumstance is held to be unconstitutional, the 
     remainder of this Act, the amendments made by this Act, and 
     the application of the provisions of such to any person or 
     circumstance shall not be affected thereby.
                                  ____



                             University of Chicago Law School,

                                      Chicago, IL, April 30, 1998.
     Hon. Dianne Feinstein,
     Senate Judiciary Committee, Technology, Terrorism, and 
         Government Information Subcommittee, Washington, DC.
       Dear Senator Feinstein: This is in response to a request 
     for my views on issues of federalism raised by the current 
     effort to prevent harassment and invasion of privacy by 
     certain photographers and journalists. In brief: From the 
     standpoint of the constitutional structure, I believe that 
     these efforts reflect an entirely legitimate exercise of 
     national power. I spell out those reasons in short compass 
     here.
       There can be no doubt that in its current form, the 
     proposal is constitutional under the commerce clause. Each of 
     the provisions is carefully drafted to apply if and only if 
     there is a clear nexus with interstate commerce. Thus under 
     existing law, the constitutional question is a simple one, 
     and there is no plausible basis for legal objection.
       The more plausible objection is not about technical law but 
     about the spirit of the federal structure. A critic might 
     claim that state law already protects against certain 
     harassing and invasive behavior, and that state law, 
     statutory or common, can easily be adapted to provide 
     stronger protections. Since the several states are generally 
     in the business of preventing against trespass and 
     threatening behavior, why should the federal government 
     intervene? Isn't this the kind of problem best handled at the 
     state level?
       These questions would be good ones if they are taken to 
     suggest that state law could, in theory, take care of many of 
     the underlying problems. But the questions are not good ones 
     if they are taken to suggest that in practice, state law 
     does, or will do, all that should be done. There are three 
     important points here.
       First, state law is both highly variable and in many places 
     ill-defined--a complex mixture of statutory and common law, a 
     mixture that does not, in many places, give a clear signal 
     against the kind of conduct that the proposed legislation 
     would ban. For example, the standards for reckless 
     endangerment are extremely variable. Nor is it at all clear 
     that most state trespass law prohibits the use of high-
     technology methods to get access to people's private 
     enclaves. In state court, the common law of trespass is in a 
     notorious and continuing state of flux. So long as the 
     commerce clause is satisfied, there is an entirely legitimate 
     national interest in giving a clear signal that certain 
     behavior is not to be tolerated amidst uncertain and 
     divergent state practices.
       Second, the national government often supplements or builds 
     on state law in order to give stronger deterrence. In many 
     states, for example, there are special laws protecting 
     against racial discrimination, environmental harm, or 
     uncompensated invasions of private property. But by itself, 
     this is not an argument that the national government should 
     not provide such measures as well. Congress often acts in 
     order to provide the kind of deterrence that national law--
     with the availability of federal prosecutors and federal 
     courts--is uniquely in a position to provide. The simple 
     truth is that harassing and invasive practices have not been 
     adequately deterred by state law and the national government 
     can provide further protection. So long as the commerce 
     clause is satisfied, this is a perfectly ordinary and 
     entirely acceptable exercise of national power.
       Third, it is important to see that the commercial 
     incentives for engaging in harassing or invasive behavior are 
     emphatically national incentives. If a photographer employed 
     by the National Enquirer chases a movie star or an ordinary 
     person in California, the potential profits are national, and 
     it is the national nature of the profits that makes such 
     behavior so likely. In addition, the nature of the harm tends 
     to involve interstate activity, with movement of people and 
     products across state lines to procure the relevant 
     photograph (when a photograph is involved). If both profits 
     and harms were limited to a single state, it might make more 
     sense to say that each state can handle the problem on its 
     own. But since both profits and harms are national in 
     character, it is far less likely that states are able to do 
     so, as actual practice has tended to show.
       I conclude that there is no legal objection to the bill 
     from the standpoint of federalism. I also conclude that the 
     bill fits well within proper practice from the standpoint of 
     maintaining Congress' limited place in the federal structure. 
     In short, this is a national problem calling for a national 
     response.
           Sincerely,
     Cass R. Sunstein.
                                  ____



                                           Harvard Law School,

                                  Cambridge, MA, December 7, 1997.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, D.C.
       Dear Senator Feinstein: I have reviewed the draft 
     legislation entitled ``The Protection From Personal Intrusion 
     for Commercial Purposes Act,'' and wanted to write to express 
     my support for legislation. In my view, the legislation 
     represents a balanced and constitutional approach to an 
     increasingly important problem. It has been drafted, I 
     believe, to avoid jeopardizing First Amendment values, and 
     has a firm constitutional foundation in the Commerce Power, 
     and also, in my view, in Congress' Section Five power under 
     the Fourteenth Amendment.
       The draft bill proposes three changes to strengthen privacy 
     protections nationally. First, the statute establishes a 
     criminal penalty for harassing conduct engaged in for 
     commercial purposes. Second, the statute establishes a civil 
     penalty for trespass for commercial purposes. And third, the 
     statute establishes a civil penalty for invasions of 
     legitimate interests in privacy for commercial purposes. I 
     consider each provision briefly below.
     1. Harassment for commercial purposes
       The aim of this provision is to target the repeated and 
     intentional chasing or following of a person in order to 
     record impressions of that person for commercial purpose. The 
     statute would make such conduct criminal, and prescribes 
     enhanced penalties if death or serious bodily harm is 
     proximately caused by such conduct.
       A number of points about this provision are important to 
     consider.
       (1) The statute is targeting traditionally prohibited 
     conduct, though more narrowly than might ordinarily be 
     expected. The statute is more narrow first because it 
     addresses conduct engaged in for commercial purposes only, 
     and second because it targets chasing or following only for 
     purposes of recording visual and auditory impressions. Both 
     limitations might be said to raise problems of 
     underinclusiveness. In both cases, however, no constitutional 
     problem is presented.
       The first narrowing (to commercial purposes) is 
     jurisdictionally required, as the conduct aimed at here is 
     only that affecting interstate commerce. Even it Congress 
     could regulate more broadly, the choice to narrow the scope 
     of its regulation does not reveal any illegitimate content 
     based purpose in selectively proscribing speech conduct. See 
     generally Elena Kagan, The Changing Faces of First Amendment 
     Neutrality: R.A.V. v. St.

[[Page S5236]]

     Paul, Rust v. Sullivan, and the Problem of Content-Based 
     Underinclusion, 1992 Sup. Ct. Rev. 29. For the same reason, I 
     do not believe the second narrowing (to visual and auditory 
     impressions) raises any significant First Amendment concern.
       (2) This is a criminal statute, so one should expect the 
     courts to read the scope of proscribed conduct narrowly. That 
     means that the statute is likely to be applied only to people 
     who intentionally engage in this form of conduct. I believe 
     the statute makes that clear, since in the definition of 
     ``harasses,'' ``persistently'' modifies ``follows or 
     chases.'' That modifier will give courts adequate room to 
     narrow the statute to conduct that is properly within its 
     scope.
       (3) Finally, because the statute only punishes conduct 
     which proximately causes serious harm, the statute will not 
     penalize conduct which results in serious harm, but is 
     actually, or legally, ``caused'' by something else. By using 
     the term ``proximately,'' the statute again invites courts to 
     narrow the application of the statute to cases where the 
     legally relevant cause of the harm is the conduct being 
     regulated.
     2. Trespass for commercial purposes
       The second protection for privacy added by this bill is a 
     protection against trespass for commercial purposes. While 
     the protection of property has traditionally been a function 
     for state regulation, the proposed statute limits the 
     protection to trespasses engaged in for commercial purposes, 
     and by definition, commercial purposes affecting interstate 
     commerce.
       There is a long history of support for a provision such as 
     this, especially in the context of civil rights statutes. 
     Congress can well take note of a weakness in the patchwork of 
     state protection against trespass, and supplement such 
     protections with a federal statute. In my view, this statute 
     would fit that form.
     3. Invasions of legitimate interests in privacy for 
         commercial purposes
       The final section of this proposed bill protects against 
     the invasion of ``legitimate interests in privacy'' for 
     commercial purposes. While I believe this provision is 
     constitutional, it is the most innovative of the three, and 
     deserves special attention.
       The interesting aspect of this statute is its method for 
     specifying the type of invasion that is not permitted. The 
     baseline for the statute's protection is the common law 
     protection against trespass. Historically, trespass law was 
     the foundation of our privacy jurisprudence, and this statute 
     is faithful to that tradition.
       The innovation in the statute is to extend trespass law to 
     protect interests that are invaded simply because of 
     technological advances--advances that make it possible to 
     capture visual and auditory impressions that would not have 
     been capturable with older technologies. The statute protects 
     traditional interests against these new technologies.
       In a sense, the statute aims at translating our traditional 
     protections of privacy into a context where technology has 
     given eavesdroppers a power that they would not originally 
     have had.
       In my view, such an effort by Congress is important, and 
     laudable. It is important because we should not allow 
     constitutional rights to be hostage to technology. If 
     technology advances, jeopardizing our constitutional 
     protections, then it is appropriate to adjust rights to 
     compensate for changes in technology. See Lawrence Lessig, 
     Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 
     871-75 (1996).
       More importantly, it is laudable that Congress take the 
     lead in this process. Of course historically, the Supreme 
     Court has also taken part in keeping the constitution up to 
     date, translating old provisions to take account of current 
     problems. But it has always done so with hesitation, since 
     the act of updating often requires political judgments that 
     it doesn't feel well positioned to make.
       Far better if those judgments are made by Congress. And in 
     my view, this proposed statute does just that. It represents 
     an effort by Congress to take the lead in the protection of 
     privacy against the threats that changing technology 
     presents. Whatever one's view about the Court doing the same, 
     it is emphatically the role of Congress to support this 
     tradition of translation.
       If there are other questions, I can answer, please don't 
     hesitate to contact me.
           With kind regards,
     Lawrence Lessig.
                                  ____

                                                              USC,


                                               The Law School,

                                   Los Angeles, CA, Nov. 26, 1997.
     Senator Diane Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: At the request of Mr. Richard Pfohl 
     of your staff, I have reviewed the proposed bill to prohibit 
     harassment for commercial purposes and to create a cause of 
     action for personal intrusion for commercial purposes. The 
     bill is narrowly written and does not violate the First 
     Amendment. Moreover, even in light of the Supreme Court's 
     decisions restricting the scope of Congress' commerce power, 
     the bill is likely to be upheld as within the scope of 
     congressional authority.
       At the outset, it is important to note that the bill does 
     not prohibit anything from being published or broadcast. Nor 
     does it create any liability for the publication or broadcast 
     of any image or information. Both parts of the bill expressly 
     state: ``Nothing in this section may be construed to make the 
     sale, transmission, publication, broadcast, or use of any 
     image or recording of the type or under the circumstances 
     described in this section in any otherwise lawful manner by 
     any person subject to criminal charge or civil liability.''
       These provisions are reinforced by sections in both parts 
     of the bill that limit liability to those ``physically 
     present at the time of, and engaging or assisting another in 
     engaging in violation of this section.'' No liability is 
     allowed ``because images or recordings captured in violation 
     of this section were solicited, bought, used, or sold by that 
     person.''
       I emphasize these provisions because they make it clear 
     that the bill does not restrict speech or create liability 
     for any publication or broadcast. Rather, the bill prohibits 
     and creates liability for specific dangerous and intrusive 
     activity. At most, the effect on the press is indirect in 
     limiting certain conduct in the gathering of information.
       In general, the Supreme Court has held that content-neutral 
     laws that have the effect of restricting speech must meet 
     intermediate scrutiny; that is, they must be shown to be 
     substantially related to an important government purpose. 
     Turner Broadcast System v. Federal Communication Commission, 
     114 S.Ct. 2445, 2458 (1994). Although I think that there is a 
     strong argument that the bill does not restrict speech at 
     all, even if a court found that it did, intermediate scrutiny 
     would be met. The government has an important interest in 
     stopping persistently physically following or chasing a 
     person ``in a manner that causes the person to have a 
     reasonable fear of bodily injury.'' This is simply an 
     extension of the prohibition of assaults; there is no First 
     Amendment right for the media to engage in an assault in 
     gathering information. Similarly, there is an important 
     interest in preventing trespass or intrusion on to private 
     property, physically or with technology. There is no First 
     Amendment right for the media to trespass in gathering 
     information.
       Although the Supreme Court has recognized that ``without 
     some protection for seeking out the news, freedom of the 
     press could be eviscerated,'' Branzburg v. Hayes, 408 U.S. 
     665, 681 (1972), the Court also consistently has refused to 
     find that the First Amendment provides the press any right to 
     violate the law in gathering information. The Court has 
     explained that ``the First Amendment does not guarantee the 
     press a constitutional right of special access to information 
     not available to the public generally.'' Id. at 684. No 
     member of the public has a right to commit an assault or a 
     trespass; nor can the press in gathering information. As the 
     Court declared in Associated Press v. NLRB, 301 U.S. 103, 
     132-33 (1937): ``The business of the Associated Press is not 
     immune from regulation because it is an agency of the press. 
     The publisher of a newspaper has no special immunity from the 
     application of general laws. He has no special privilege to 
     invade the rights and liberties of others. He must answer for 
     libel. He may be punished for contempt of court. He is 
     subject to the anti-trust laws. Like others he must pay 
     equitable and nondiscriminatory taxes on his business. The 
     regulation here in question has no relation whatever to the 
     impartial distribution of news.''
       The Supreme Court expressly held that the press is not 
     exempt from general laws in Cohen v. Cowles Media Co., 501 
     U.S. 663 (1991). A newspaper published the identity of a 
     source who had been promised that his name would not be 
     disclosed. The Court rejected the argument that holding the 
     newspaper liable for breach of contract would violate the 
     First Amendment. The Court stressed that the case involved 
     the application of a general law that in no way was motivated 
     by a desire to interfere with the press. The Court said: 
     ``Generally applicable laws do not offend the First Amendment 
     simply because their enforcement against the press has 
     incidental effects on its ability to gather and report the 
     news. [E]nforcement of such general laws against the press is 
     not subject to stricter scrutiny than would be applied to 
     enforcement against other persons or organizations.'' Id. at 
     669-70.
       The bill prohibits anyone from persistently following 
     another in a manner that reasonably creates fear of bodily 
     injury or committing a trespass for purposes of capturing a 
     visual or auditory recording. There is no First Amendment 
     right to engage in such activity and no First Amendment basis 
     for an exemption to such a narrowly tailored law.
       The other possible constitutional challenge to the bill 
     would be on the ground that it exceeds the scope of Congress' 
     commerce clause authority. From 1936 until April 26, 1995, 
     the Supreme Court did not find one federal law 
     unconstitutional as exceeding the scope of Congress' commerce 
     power. Then in United States v. Lopez, 115 S.Ct. 1624 (1995), 
     the Supreme Court declared unconstitutional the Gun-Free 
     School Zones Act of 1990 which made it a federal crime to 
     have a gun within 1,000 feet of a school. After reviewing the 
     history of decisions under the commerce clause, the Court 
     identified three types of activities that Congress can 
     regulate under this power. First, Congress can ``regulate the 
     use of the channels of interstate commerce.'' Id. at 1629. 
     Second, the Court said that Congress may regulate persons or 
     things in interstate commerce and ``to protect the 
     instrumentalities of interstate commerce.'' 115 S.Ct. at 
     1629. Finally, the Court said that

[[Page S5237]]

     Congress may ``regulate those activities having a substantial 
     relation to interstate commerce.'' Id. at 1629-30.
       The bill is limiting to regulating commercial activity in 
     that it prohibits and creates liability for ``harrassment for 
     commercial purposes'' and ``trespass and invasion of 
     legitimate interest in privacy for commercial purposes.'' 
     Commercial purposes is defined as activity ``with the 
     expectation of sale, financial gain, or other 
     consideration.'' In Lopez, the Court emphasized the absence 
     of commercial activity in the law or its application.
       Moreover, the bill fits within the categories articulated 
     in Lopez. Through fact-finding, Congress should be able to 
     document that those who engaged in such activity are engaged 
     in interstate commerce. This, too, is different from Lopez, 
     where the Court stress the lack of any evidence linking the 
     prohibited conduct to interstate commerce.
       Please let me know if I can be of further assistance.
           Sincerely,
     Erwin Chemerinsky.
                                  ____



                             University of Chicago Law School,

                                       Chicago, IL, Nov. 24, 1997.
     Senator Dianne Feinstein,
     Senate Judiciary Committee,
     Technology, Terrorism, and Government Information 
         Subcommittee, Washington, DC.
       Dear Senator Feinstein: This letter is in response to your 
     request for my views on the constitutionally of the proposed 
     statute designed to protect against harassment and invasion 
     of privacy by exploitative photographers, sound recorders, 
     and film crews. The bill would create a new federal criminal 
     and civil offense and two additional grounds for federal 
     civil liability. I believe that the bill is constitutional as 
     drafted. Here is a brief analysis of the legal issues.
       The first question is whether the federal government has 
     the authority to enact a measure of this kind. The most 
     likely candidate is the commerce clause. Under the commerce 
     clause, the federal government does have this authority, 
     especially in light of the fact that the bill, as written, 
     requires a clear connection between the interstate commerce 
     and the harassing and invasive action. See the rules of 
     construction in sections 2 and 4. In fact this connection is 
     stronger than that in several of the cases in which the Court 
     has upheld congressional action under the commerce clause. 
     See Wickard v. Filburn, 317 U.S. 111 (1942); United States v. 
     Darby, 312 U.S. 100 (1941). United States v. Lopez, 115 S. 
     Ct. 1624 (1995), is not to the contrary, for in that case, 
     Congress did not require any connection between interstate 
     commerce and the prohibited possession of firearms on or near 
     school property. It is conceivable that the bill might be 
     challenged in some cases in which a photographer did not move 
     in interstate commerce and did not sell anything in 
     interstate commerce but intended to do so (see the rules of 
     construction). But under the cases cited above, its probably 
     constitutional even under such circumstances, because the 
     photographer would be part of a ``class'' of participants in 
     interstate commerce.
       The second question is whether the bill violates the first 
     amendment. Here it is important to distinguish between a 
     constitutional challenge to the bill ``on its face'' and a 
     challenge to the bill ``as applied.'' I believe that a facial 
     challenge would fail. The bill is content neutral, see Turner 
     Broadcasting Inc. v. FCC, 114 S. Ct. 2445 (1994); its 
     prohibitions apply regardless of the particular content of 
     the underlying material. This is especially important, since 
     the Court treats content-neutral restrictions more hospitably 
     than content-based restrictions. See id. Moreover, the bill 
     is directed at action, not at speech itself; speech itself is 
     left unregulated by the bill. In a way the constitutional 
     attack on the bill amounts to a claimed first amendment right 
     of access to private arenas and to information a right that 
     the Court has generally denied. See Pell v. Procunier, 417 
     U.S. 817 (1974); Houchins v. KQED, 438 U.S. 1 (1978); 
     Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
       To be sure, this is not the end of the matter: A content-
     neutral restriction on action may create constitutional 
     problems if the action would result in restrictions on the 
     production of speech, as this bill would undoubtedly do. 
     Imagine, for example, a law that defined ``trespass'' to 
     include any effort to take photographs near the White House 
     or the Supreme Court. Cf. United States v. Kokinda, 497 U.S. 
     720 (1990). In assessing the validity of such a restriction, 
     some relevant questions are whether the restriction is 
     justified by sufficient government interests, whether there 
     are less restrictive alternatives for protecting those 
     interests, and whether the restriction on the production of 
     speech is small or large. See id. In most cases covered by 
     the bill, the restriction would be amply justified. If a 
     photographer has chased someone in such a way as to produce a 
     reasonable fear of bodily injury, the government has a strong 
     reason to provide protection, and the bill is a narrow 
     tailored means of doing so. Thus section 2, adding the new 
     criminal offense, seems on firm ground.
       Section 4 is designed to ensure that photographers do not 
     engage in trespasses, or the equivalent of trespasses, in 
     order to invade people's privacy without their consent. This 
     section is also supported by the strong government interest 
     in ensuring that people have a secure private realm, one into 
     which those using the channels of interstate commerce do not 
     enter without consent. In most of its applications, section 4 
     is also likely to be constitutional. Assume, for example, 
     that a photographer has trespassed into the private property 
     of a movie star in order to take pictures of a dinner or a 
     romantic encounter. Since the images are themselves 
     unregulated (see section 4(d)), the government almost 
     certainly has sufficient grounds to forbid this kind of 
     behavior, a trespass at common law. Although the Supreme 
     Court has subjected some common law rules to first amendment 
     limitations, it has never held that the law of trespass, even 
     though it restricts activity that would produce speech, 
     generally raises constitutional questions. Thus I conclude 
     that section 4 is constitutional in most of its likely 
     applications.
       There are some contexts in which harder questions might be 
     raised. Assume, for example, that a presidential candidate is 
     engaged in unlawful activity on private property, and that a 
     journalist and a photographer have used technological devices 
     in order to obtain a record of that activity. Under section 
     4(b)(2), there has been a kind of federal tort, giving rise 
     of compensatory and punitive damages. It is possible that the 
     special first amendment liability in such cases. Cf. New York 
     Times v. Sullivan, 376 U.S. 254 (1964). Thus a series of 
     cases might be imagined in which section 4, and conceivably 
     even section 2, would give rise to a reasonable 
     constitutional challenge as applied. This is true, however, 
     of a large range of generally permissible statutes; the 
     question for present purposes is whether the bill would be 
     constitutional on its face. I conclude that it would be.
       I hope that these brief remarks are helpful.
           Sincerely,
     Cass R. Sunstein.

                          ____________________